Source : http://www.asahi.com/sp/ajw/articles/AJ201803160055.html
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La Cour Suprême du Japon a rendu un arrêt jugeant illégal le refus d’une mère de faire retourner son enfant dans le pays duquel elle l’a soustrait (les États-Unis) sans autorisation du père.
Article en anglais :
Mother’s refusal to return child to U.S. ruled ‘illegal restraint’
By GEN OKAMOTO/ Staff Writer
March 16, 2018 at 16:35 JST
A Japanese mother in Japan who is refusing to return her child to the Japanese father in the United States is « illegally restraining » the child under the Hague Convention on international child abductions, the Supreme Court ruled March 15.
It is the first such ruling by a Japanese court based on the convention, which came into effect in Japan in 2014.
The decision was made in a writ of habeas corpus filed by the father of a child abducted from the United States by the child’s mother.
The mother is refusing to return the child to the United States despite an order from a Japanese family court to do so.
The Supreme Court also sent the case back to the Nagoya High Court for a retrial.
Under the convention, if a child under 16 is taken outside of a country where it lives without the other parent’s consent, in principle, it should be returned to the nation where it was a resident.
Since the treaty came into effect in Japan in 2014, there have been a series of cases in which parents in Japan have refused to return children snatched from overseas despite family court orders, according to the Foreign Ministry.
The Supreme Court decision could affect the handling of such cases.
The mother gave birth to the child in the United States in 2004 and returned to Japan with her child in 2016 without the consent of the child’s father, according to the Supreme Court.
The father demanded the return of the child, and the Japanese family court granted his appeal, but both mother and child refused to accept the decision.
In a subsequent lawsuit, the Nagoya High Court ruled that the mother keeping the child was not “illegal restraint.”
But the Supreme Court judgment pointed out first of all that, generally speaking, a child abducted from abroad has no choice but to face up to life in a different environment where another language is spoken.
Then the presiding justice suggested that careful consideration over whether the child can gain sufficient information about what the future holds, or is subjugated to unfair psychological influence from the abductor parent, are necessary to make a judgment.
And, if there was a situation in which the child was unable to make a free-will decision, then inhibiting the return of the child may be an act of illegal restraint.
The Supreme Court decided that in this case the child was “illegally restrained” by the mother as the child was unable to gain objective information as the child was only 11 at the time of arrival in Japan and was under unfair psychological influence from the mother.
The First Petty Bench concluded that the case needs to be retried at the Nagoya High Court.